GE.18-06990(E)

Trade and Development Board Trade and Development Commission

Intergovernmental Group of Experts on Competition Law and Policy

Seventeenth session

Geneva, 11–13 July 2018

Item 3 (a) (i) of the provisional agenda

Challenges faced by developing countries in competition and regulation in the maritime transport sector

Note by the UNCTAD secretariat

Executive summary

Over 80 per cent of world merchandise trade by volume and over 70 per cent by

value is carried by sea and handled by seaports worldwide. More than half of the total value

of global seaborne trade involves containerized cargo transported by liner shipping carriers.

Maritime transport is thus highly significant for trade and development, and the liner

shipping industry plays a crucial role in international trade in manufactured goods, which

contributes to economic growth.

This note focuses on the regulatory framework of the liner shipping industry and

related competition issues. It considers the market structure and the most recent

developments with regard to competition and concentration in the sector. In addition, the

note examines the challenges faced by developing countries and provides policy options for

promoting competition in the industry.

United Nations TD/B/C.I/CLP/49

United Nations Conference on Trade and Development

Distr.: General

2 May 2018

Original: English

TD/B/C.I/CLP/49

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Introduction

1. The maritime transport supply chain includes many segments, ranging from the

building, owning and registration of ships to the operation and scrapping of ships.

Each segment involves different actors from both developed and developing countries.

Over 80 per cent of world merchandise trade by volume and over 70 per cent by value is

carried by sea and handled by seaports worldwide. World seaborne trade volumes are

estimated to grow at a compound annual growth rate of 3.2 per cent in 2017–2022. 1

Maritime transport is thus highly significant for trade and development.

In 2007, containerized cargo accounted for 52 per cent of the total value of global seaborne

trade, reflecting the higher value of goods carried in containers; tanker trade accounted for

22 per cent; general cargo accounted for 20 per cent; and dry bulk accounted for 6 per cent.2

2. Transport costs are a non-negligible part of trade costs. In 2016, countries spent on

average about 15 per cent of the value of their imports on international transport and

insurance and smaller and vulnerable economies paid higher costs, reaching an average of

22 per cent in small island developing States, 19 per cent in landlocked developing

countries and 21 per cent in the least developed countries (figure). Less efficient ports,

inadequate infrastructure, limited economies of scale and less competitive transport markets

are among the factors determining transport cost burdens in many developing countries.3

Growing vessel sizes and reduced competition due to further consolidation may worsen this

situation, in particular for small and structurally weak economies.

Transport and insurance costs of international trade, 2006–2016

(Percentage share of value of imports)

Source: UNCTAD, 2017, figure 3.5.

1 UNCTAD, 2017, Review of Maritime Transport 2017, United Nations publication,

sales No. E.17.II.D.10, New York and Geneva.

2 UNCTAD, 2013, Review of Maritime Transport 2013, United Nations publication,

sales No. E.13.II.D.9, New York and Geneva.

3 UNCTAD, 2017.

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3. The UNCTAD liner shipping connectivity index indicates the level of integration

of a country into global liner shipping networks. Connectivity improved significantly in

2004–2017 and the index increased for a majority of countries. 4 An UNCTAD study

assessing the impact of the nature of maritime connections on bilateral exports of

containerized goods demonstrated that the quality of maritime connectivity is likely to be a

significant determinant of foreign market access and, eventually, export performance. 5

This shows the importance of the liner shipping industry and the liner shipping connectivity

of countries with regard to export competitiveness and global trade.

4. In 2016, the maritime transport sector continued to be affected by the economic

downturn after 2009, which has brought about persistently weak global demand. The

supply of carrying capacity increased faster than demand, leading to global overcapacity

and depressed freight rates and shrinking the profitability of liner shipping carriers. This

has led to increased consolidation through mergers and global alliances among container

carriers in a market that was already highly concentrated.

5. This note focuses on the regulatory framework of the liner shipping segment of

maritime transport and related competition issues. The liner shipping industry is a

capital-intensive industry characterized by an imbalance between the supply of vessel

capacity and the demand for moving cargo. The current context, although welcome from

the perspective of shippers given the impact on rates, presents challenges to liner shipping

service providers. Such challenges include compressed demand due to persistently weak

growth in global trade since 2009; historically low freight rates; intense competition

between carriers, potentially resulting in unsustainable cuts in rates; a race to order

megaships; and new, more stringent environmental regulatory requirements.6 To respond to

such challenges, the liner shipping industry has sought to optimize capacity utilization and

reduce costs through consolidation and has therefore experienced increasing market

concentration in recent years. In 2016 and the first half of 2017, the industry witnessed an

intensification of consolidation efforts, in the form of both mergers and acquisitions and

through liner shipping alliances.

I. Liner shipping: Cooperative arrangements

6. The liner shipping industry is characterized by cooperative arrangements, which

originally took the form of liner conferences and, following the initiation of

containerization in 1956, have also taken the form of consortiums, strategic alliances and

capacity-stabilization, vessel-sharing and voluntary-discussion agreements. The

international regulatory regime was initially characterized by an almost universal

exemption of all such forms of cooperation agreements from the application of competition

law. Exemptions for liner conferences were justified on the basis of arguments that the

specific nature of costs that characterized the sector rendered competition in the industry

unsustainable, resulting in poor outcomes for all market participants. Liner conferences

were therefore perceived as inevitable for the profitability and stability of carriers and for

service regularity for exporters.7

7. The Convention on a Code of Conduct for Liner Conferences (1974) defines a

liner conference as “a group of two or more vessel-operating carriers which provides

international liner services for the carriage of cargo on a particular route or routes within

specified geographical limits and which has an agreement or arrangement, whatever its

nature, within the framework of which they operate under uniform or common freight rates

4 See http://unctadstat.unctad.org/wds/TableViewer/tableView.aspx?ReportId=92.

5 Quality variables include the existence of a direct maritime connection between two countries, that is,

of at least one operational shipping service, and a variable resulting from an optimization algorithm

indicating the number of trans-shipments necessary to connect two countries (M Fugazza, 2015,

Maritime Connectivity and Trade, Policy Issues in International Trade and Commodities,

Research Studies Series No. 70, United Nations publication, New York and Geneva).

6 JW Butler, 2017, World Shipping Council statement to the United States Subcommittee on Coast

Guard and Maritime Transportation, 3 May, Washington, D.C.

7 Organization for Economic Cooperation and Development, 2015, Competition issues in liner

shipping, DAF/COMP/WP(2015)3, 10 June.

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and any other agreed conditions with respect to the provision of liner services”. In modern

competition law terminology, conferences fall under the definition of a price-fixing cartel.

8. Liner conferences remain exempt from competition law in many jurisdictions.

In jurisdictions with exemptions, these have been softened and subjected to certain

conditions, with the possibility of investigating the anti-competitive practices of

conferences. The proponents of liner conferences justify their exemption on the basis of

high fixed costs, large initial capital investments, other high non-cargo costs, imbalances

between supply and demand and overcapacity and the need for regular, scheduled maritime

shipping services in international trade.

9. The powers of liner conferences began to decrease after the 1970s. The adoption

of the Ocean Shipping Reform Act in the United States of America in 1998, along with a

report by the Organization for Economic Cooperation and Development in 2002, changed

the international landscape for liner conferences. The main change introduced by the Act

was to allow confidential service contracts with carriers outside conferences, which no

longer needed to be made public. This increased competition and contributed to reducing

the importance of conferences. The Organization for Economic Cooperation and

Development report questioned whether antitrust exemptions for liner conferences could be

justified and, upon examination of the economic rationale for such agreements, found that

there was no compelling evidence of benefits for shippers and consumers. The report

concluded that liner shipping conferences no longer served the purpose of guaranteeing

freight rates and supply stability for shippers and, therefore, were no longer warranted.8

10. The report led to a review of the European Union block exemption for liner

conferences and its repeal in 2008. Both the Organization for Economic Cooperation and

Development report and the European Union decision to repeal block exemption led to a

review of exemptions in other jurisdictions, including Australia, Israel, Japan and

New Zealand, with different results. Israel repealed block exemption for shipping

agreements. Other jurisdictions, such as Australia, Japan, Singapore and the United States

have maintained immunity for agreements between liner shipping carriers.

11. Following the introduction of containerization, from the 1960s onwards, carriers

began to focus on cost rationalization in addition to rate fixing. This brought about a

proliferation of consortiums. The Organization for Economic Cooperation and

Development defines consortiums as agreements and/or arrangements between liner

shipping carriers “aimed primarily at supplying jointly organized services by means of

various technical, operational or commercial arrangements (e.g. joint use of vessels, port

installations, marketing organizations, etc.)”.9 The aims of consortiums include reducing

capital costs, sharing risks, achieving economies of scale and strengthening bargaining

power against terminal operators and port authorities. The latter is achieved through

increased consolidation in the sector and has reached an extent where the powers of carriers

compared with terminal operators may pose competition challenges and risks with regard to

export competitiveness, in particular in developing countries.

12. A specific form of consortium, namely a global alliance, began to be formed in the

1990s. An alliance consists of a small group of carriers that engage in substantial asset

sharing and operational cooperation while maintaining individual marketing and

commercial identities. In contrast to liner conferences, alliance members do not jointly set

freight rates but independently compete on pricing. Alliance members often enter into

vessel-sharing agreements covering major routes, each of which may be defined as a

relevant market in competition law terminology. Normally, an alliance covers at least two

of the major East–West trade routes, namely Europe–Asia, Asia–United States and United

States–Europe. All carriers in an alliance bring together their fleets, moving containers on

behalf of each other, to extend their services and geographic coverage, with the aim of

increasing market share, reducing undercapacity issues, improving co-loading

opportunities, optimizing port calling efficiencies and minimizing overall risks. Many

8 Ibid.

9 Organization for Economic Cooperation and Development, 2002, Regulatory issues in international maritime transport, DSTI/DOT(2001)3, 8 March.

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jurisdictions consider that consortiums and alliances generate efficiencies, and therefore

provide general exemptions from competition law.10 Currently, three alliances, namely the

2M Alliance, Ocean Alliance and “The” Alliance, bring together the leading 10 carriers.11

13. Consortiums are regulated by agreements between members, such as, in order by

degree of commitment by signatories, slot-charter, slot-exchange and vessel-sharing

agreements. Slot-charter agreements consist of the lease of container slots by a partner on

board vessels operated by consortium members. Slot-exchange agreements are similar but

also entail reciprocal chartering. Vessel-sharing agreements are the strongest agreements,

and entail sharing ship capacity with partners in order to increase ship utilization rates.12

14. Vessel-sharing agreements are a common practice and considered to be

increasingly economically relevant in the liner shipping industry. Many of the largest

carriers are involved in some type of vessel-sharing agreement. Such agreements facilitate

operational arrangements for the provision of liner shipping services and may include

coordination or the joint operation of vessel services and the sharing of vessel capacity.

They can help promote competition by facilitating market entry for carriers that do not have

a sufficient volume of cargo to operate an independent vessel, in order for them to compete

with other carriers on the same routes. Such agreements may benefit in particular smaller

carriers or carriers that wish to enter new markets.13 In addition, liner shipping carriers need

cooperation agreements to ensure the continuity of service in the long term. The ability to

easily enter into and exit agreements and adjust agreements to market changes, as well as

the legal certainty provided by sector-specific regulations or exemptions, provide carriers

the flexibility and ability to adjust services to changes in market conditions, with limited

service disruption.14

15. In principle, vessel-sharing agreements do not provide for any agreement on the

quantity to be carried or for price fixing. They are often exempt from competition law in

many jurisdictions, and may be subject to review or approval by competition authorities.

Exemptions for vessel-sharing agreements provide reassurance to liner shipping carriers by

reducing or eliminating unnecessary litigation that may slow their operations.15 One study

that examined the effects of the formation and enlargement of vessel-sharing agreements on

equilibrium prices, equilibrium aggregate quantities and consumer welfare showed that on a

given commercially active route, the formation and enlargement of such agreements

increased shipper welfare (consumer surplus) and the volume of cargo transported

(equilibrium aggregate quantity) and lowered freight rates, and concluded that vessel-

sharing agreements had pro-competitive effects.16

16. Another type of agreement is a voluntary-discussion agreement, under which

parties may exchange market information, such as on supply and demand forecasts and

industry trends, and subscribe to voluntary guidelines. Although non-binding, voluntary

guidelines and information sharing under such agreements may facilitate price and capacity

fixing and are not justified with regard to their impact on the creation of efficiencies.17

Voluntary-discussion agreements are not exempt from competition law in the

European Union. Other jurisdictions may allow such agreements along with other

cooperative agreements, including price-setting liner conferences, as long as they are

notified to competition authorities and are subsequently monitored. In 2013, about 65 liner

conferences and voluntary-discussion agreements existed on the trans-Pacific and

transatlantic routes, representing approximately 50 per cent of world trade. 18 Given its

10 UNCTAD, 2016, Liner shipping: Is there a way for more competition? Discussion paper No. 224.

11 For more information on global alliances, see UNCTAD, 2017.

12 Organization for Economic Cooperation and Development, 2015.

13 Contributions from the World Shipping Council, the European Community Shipowners’ Associations

and the International Chamber of Shipping.

14 Ibid.

15 Contribution from the Government of India.

16 F Quartieri, 2017, Are vessel-sharing agreements pro-competitive? 21 April.

17 Contribution from the Government of India.

18 AJ Braakman, 2013, The anti-competitive effects of a globally concentrated, oligopolistic maritime

market: From explicit to tacit collusion – An analysis based on the P3 network, Journal of

International Maritime Law, 19(5): 419–436.

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experiences in cartel investigations, the competition authority of Brazil determined that

some agreements, which could initially result in economic efficiencies, had conditions that

could lead to illegal agreements between competitors.19

II. Liner shipping: Regulatory framework for competition

17. The major liner shipping trade routes are the Asia–Europe, trans-Pacific and

transatlantic routes, as well as the intra-Asia route. In 2016, world container port volumes

by region were as follows: Asia, 64 per cent; Europe, 16 per cent; North America, 8 per

cent; developing America, 6 per cent; Africa, 4 per cent; and Oceania, 2 per cent.20

18. This chapter examines the regulatory framework for competition in leading

economies on major trade routes, which have a global regulatory impact, namely China, the

United States and the European Union. This does not mean that regulation of the sector is

limited to the relevant authorities in these jurisdictions. Other competition authorities play

an essential role in ensuring competition in liner shipping, since a merger or acquisition

between carriers cannot be operationalized until it has been approved by all notified

jurisdictions.

19. At the international level, there is no globally endorsed, legally binding

multilateral instrument on competition in liner shipping. A number of instruments related to

liner shipping have been adopted under the auspices of international organizations such as

UNCTAD, including the Convention on a Code of Conduct for Liner Conferences, which

entered into force in 1983 and had 76 States parties as at 15 January 2018, and the

guidelines for its application, developed in 1986. The Convention provides, among others,

rules on access to cargo shares by shipowners established in the territories of States parties

that serve their mutual foreign trade. It grants certain rights and imposes requirements upon

States parties aimed at addressing the special needs of and alleviating the challenges faced

by developing countries. The Convention requires 40-40-20 cargo sharing among members

of liner conferences, which was an attempt to provide countries with an opportunity to

participate in the carriage of their trade. However, as the Convention has not been widely

implemented among States parties, this requirement has also not been implemented.

A. China

20. China is the leading global exporter with, in 2016, a 13.12 per cent share in world

merchandise exports and accounting for 29 per cent of world container port throughput and

48 per cent of container port volumes handled in the top 40 container terminals. 21

China therefore plays a crucial role in the review of global alliances and mergers in the

liner shipping industry.

21. The Ministry of Transport is the authority responsible for enforcing the maritime

transport regulations, effective since 2002.22 The regulations aim to, among others, regulate

maritime transportation and protect fair competition and, similar to laws in the United

States and the European Union, apply to liner agreements to and from ports in China.23

According to the regulations, liner agreements and freight-rate agreements must be filed

with the Shanghai Shipping Exchange, as the authority designated by the Ministry for this

purpose. 24 However, in 2014, the Ministry of Commerce received the notification of

the P3 alliance initiative and reviewed the case based on the powers granted under the

Anti-Monopoly Law (2008) to review and approve or reject mergers and concentrations

based on their competition effects (box 1).

19 Contribution from the Government of Brazil.

20 UNCTAD, 2017, figure 4.1.

21 UNCTADstat database; UNCTAD 2017, tables 4.1 and 4.2.

22 China, 2001, Regulations on international maritime transportation, Order of the State Council of

China No. 335, 5 December.

23 M Drenan, 2015, Watchdogs of the world: Global liner conference regulators in the modern shipping

market and why the P3 agreement failed, Michigan State International Law Review, 24(1): 79–109.

24 UNCTAD, 2016.

http://en.sse.net.cn/resource/file/Maritime%20Transportation%20Regulations.doc

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Box 1

P3 alliance initiative, 2013

The P3 alliance initiative involved the three largest liner shipping carriers at the

time, namely Maersk, the Mediterranean Shipping Company and CMA CGM. The carriers

agreed to pool vessels, equivalent to 15 per cent of global capacity, on three major routes,

namely the Asia–Europe, trans-Pacific and transatlantic routes. The initiative was

considered a sign of the difficulties the industry had been experiencing due to overcapacity

and volatile freight rates. The agreement was notified to a number of competition

authorities worldwide and was approved by European Union and United States authorities.

However, it was not operationalized due to a decision by the Ministry of Commerce

of China in June 2014 to not authorize the alliance. The Ministry had evaluated the

potential impact of the alliance on competition under its merger regime and decided that the

alliance formed a close association, which differed from traditional vessel-sharing

agreements and slot-exchange protocols with regard to forms of cooperation, operational

procedure and cost sharing. The Ministry determined that the alliance would significantly

enhance the market power of the parties and market concentration on the Asia–Europe

route, and erect entry barriers to this route. The combined capacity share of the three

carriers had reached 46.7 per cent by January 2014. The Ministry also reviewed impacts on

other actors, such as competing liner shipping carriers, shippers and port authorities, and

determined that the increased market power in the sector of the leading three carriers would

have a negative impact on such other actors, in particular due to the strengthened

bargaining power of the three carriers compared with shippers and port authorities.

Sources: Financial Times, 2013, Big three container shipping groups plan alliance, 18

June; Ministry of Commerce of China, 2014, Announcement No. 46, 20 June.

B. United States

22. The Federal Maritime Commission is the independent regulatory agency

responsible for the regulation of seaborne transportation in the foreign commerce of the

United States for the benefit of United States exporters, importers and the United States

consumer. 25 Its mission is to ensure competitive and efficient maritime transportation

services for shippers, by monitoring agreements among carriers and service contracts with

regard to their effects on prices and services. The amendment of the Shipping Act (1916) in

1961 established the Commission and gave it the power to disapprove agreements between

liner shipping carriers that were not in the public interest. In this regard, a violation of

antitrust laws would be considered against the public interest. The Shipping Act (1984)

removed both the public interest clause and the requirement for approval by the

Commission for agreements between liner shipping carriers. Vessel-sharing agreements and

other cooperative agreements are also permitted under the Act.

23. The United States has a statutory antitrust exemption for liner conferences.

The Shipping Act, as amended by the Ocean Shipping Reform Act (1998), provides an

alternative competition enforcement regime and includes limited antitrust immunity for

agreements between liner shipping carriers from competition law. The Act introduced

reforms that ended the authority of liner conferences to regulate the service contracts of

members. In addition, the Act allows conference members to negotiate independent

confidential service contracts with shippers and prohibits other members from retaliating

against shippers or carriers that do so. Prior to the Act, such contracts had to be made

public, potentially reducing the incentive for participants to enter into them. The annual

report of the Commission in 2014 stated as follows: “Conference or price-fixing

agreements have become largely irrelevant to United States liner shipping. No new carrier

conference agreements have been filed with [the Commission] since fiscal year 2000. The

25 Organization for Economic Cooperation and Development, 2015, Competition issues in liner shipping, DAF/COMP/WP2/WD(2015)13, 26 May.

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remaining three conferences cover only government cargoes.”26 All conduct that does not

fulfil antitrust exemption requirements is subject to competition law and investigated by the

Department of Justice if it involves cartel-like practices, including price fixing, bid rigging

and market allocation.

24. With regard to competition law enforcement related to maritime shipping services,

the Commission monitors the competitive impact and commercial conditions of agreements

between liner shipping carriers. Under the Act, parties must notify the Commission of such

agreements and state their purpose. The Commission conducts a competition impact

assessment and develops monitoring report requirements before clearing an agreement.

Unless the Commission rejects it and challenges it in the courts, an agreement takes effect

45 days after filing.

C. European Union

25. Regulation No. 4056/86 provided a block exemption for liner conferences from

European Union competition rules. In 2003, the European Commission initiated a review of

this regulation to verify whether the justification for price fixing and supply control by liner

conferences remained relevant under changing market conditions. The review found no

causal link between price fixing and reliable liner shipping services. In contrast, it

concluded that revocation of the exemption would improve service quality and decrease

prices and lead to considerable reductions in charges and surcharges, and that the decrease

in prices would provide developing countries with an opportunity to increase exports and

imports. Repeal was also likely to have a positive impact on developing countries since

they typically exported low-value commodities with a relatively high share of transport

costs.27

26. Consequently, the European Union adopted Regulation No. 1419/2006, which

repealed Regulation No. 4056/86 and the block exemption for liner conferences, with effect

from 18 October 2008. Anti-competitive practices of liner conferences on routes to and

from the European Union are no longer exempted from the scope of article 101(1) of the

Treaty on the Functioning of the European Union.

27. With regard to consortiums, the European Union adopted its first block exemption

in 1995, which has been reviewed several times since. Regulation No. 906/2009 extended

the block exemption for consortiums until April 2020. If it is not extended following a

five-year review, it will expire. The exemption is limited to international liner

shipping services to or from one or more European Union ports. Consortiums do not

involve price-fixing arrangements. According to Regulation No. 906/2009, consortiums

improve the productivity and quality of liner shipping services through economies of scale

in vessel operation and port facility utilization and promote technical and economic

progress. One study attributes the favourable approach of the European Union to

consortiums and/or vessel-sharing agreements to the view that they benefit not only carriers

but also consumers and shippers through the trickledown effect of efficiencies.28 According

to Regulation No. 906/2009, the joint market share of the members of a consortium may not

exceed 30 per cent and, if it does so, the consortium cannot benefit from the exemption.

At present, consortiums and alliances exceed a 30 per cent market share and consortium or

alliance members must therefore perform self-assessments of compliance with article

101(1) of the Treaty on the Functioning of the European Union. If they cannot demonstrate

compliance, they must demonstrate that the consortium or alliance creates efficiencies and

passes them on to customers and complies with the other conditions under article 101(3).

28. The P3 alliance initiative exceeded a 30 per cent market share and could not

benefit from the block exemption. The European Commission was not required to formally

approve the proposed alliance. However, it conducted a review due to the unprecedented

size and characteristics of the alliance, and the potential anti-competitive effects that might

26 Ibid.

27 European Commission, 2005, Proposal for a Council regulation repealing Regulation No. 4056/86.

28 Drenan, 2015.

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have arisen due to exchanges of sensitive information and foreclosures in relevant markets,

as well as with regard to the significance of efficiencies the alliance might have created.29

III. Liner shipping: Market structure, concentration and competition

29. Vessel size and capacity have increased significantly in the last decade.

Maximum ship size in terms of 20-foot equivalent units grew from 8,160 in 1997 to

15,550 in 2006 and 21,100 in 2017.30 The continuing increase is a result of the search for

economies of scale, and triggers increased consolidation due to difficulties in filling

megaships.

30. Liner shipping is a concentrated industry, with the five largest operators

accounting for 61.1 per cent of global vessel capacity as at 30 April 2018.31 Despite recent

consolidation, container shipping remains a competitive industry. 32 One study in 1998

highlighted that mergers and acquisitions had created some large liner shipping carriers and

that “the top 20 carriers now control more than half of the world’s container slot

capacity”.33 In 2014, the leading 10 shipping lines accounted for 68 per cent of deployed

capacity; by 2018, their share had increased to 83 per cent.34

31. The sector witnessed greater consolidation in 2016 through mergers and

acquisitions and mega-alliances (box 2). Following recent consolidations, in the first

quarter of 2018, the average number of liner shipping service operators by jurisdiction fell

by 7.3 per cent, compared with in the second quarter of 2016.35 In the same period, the

number of operators decreased by 19 per cent in Brazil, 17 per cent in Egypt, 13 per cent in

South Africa, 8 per cent in Malaysia and 5 per cent in China.36 The number of services

provided by all liner shipping operators fell by 7.5 per cent, from 504 in the first quarter of

2014 to 466 in the first quarter of 2018.37 The impact of increasing consolidation is also felt

by smaller operators that are not a part of alliances. Their share of deployed capacity is 11

per cent on the trans-Pacific route, 7 per cent on the transatlantic route and1 per cent on the

Asia–Europe route.38

Box 2

Recent mergers and global alliances in container shipping

The number of large-scale international carriers in the liner shipping industry had

fallen from 20 to 17 by the end of 2016, as a result of the acquisition of American President

Lines by CMA CGM and the merger of China Shipping Container Lines and China Ocean

Shipping (Group) Company, as well as the exit of Hanjin Shipping in September 2016.

The number of carriers has further decreased with the latest mergers concluded in

2017, namely the Maersk and Hamburg Süd merger, the Hapag-Lloyd and United Arab

Shipping Company merger and a new joint venture due to start operations in April 2018,

Ocean Network Express, launched by the three largest lines in Japan, namely Nippon Yusen

Kaisha, Mitsui Osaka Shosen Kaisha Lines and Kawasaki Kisen Kaisha Limited – K Line.

29 Organization for Economic Cooperation and Development, 2015, Competition issues in liner shipping, DAF/COMP/WP2/WD(2015)1, 9 June.

30 Organization for Economic Cooperation and Development International Transport Forum, 2015,

The Impact of Megaships, Paris, p. 18.

31 See https://alphaliner.axsmarine.com/PublicTop100/.

32 Drewry Maritime Research, 2018, Drewry insight weekly, January.

33 Economic Commission for Latin America and the Caribbean, 1998, Concentration in Liner Shipping:

Its Causes and Impacts for Ports and Shipping Services in Developing Regions, Santiago.

34 MDS Transmodal, 2018, Top 10 shipping lines control almost 90 per cent of the deep-sea market,

18 February.

35 MDS Transmodal containership database.

36 UNCTAD calculations based on MDS Transmodal containership database.

37 MDS Transmodal, 2018.

38 MDS Transmodal containership database.

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There are thus at present 12 large-scale international carriers. In addition to mergers

and acquisitions, shipping lines have undergone transformations through the shuffling of

existing alliances and the creation of new alliances. The leading 10 carriers have joined

forces in three global alliances, down from four at the start of 2016. In addition to the 2M

Alliance, two new alliances, Ocean Alliance and “The” Alliance, have been established and

started services in April 2017.

Source: UNCTAD, 2017.

32. Consolidation may result in better supply management and fleet utilization and

improved efficiency, and benefit the industry through the pooling of cargo and through

improved economies of scale, reduced operating costs and improved earnings. Carriers may

also gain benefits from cooperation by sharing resources, including port calls and networks,

and by developing new services. Shippers may also benefit from consolidation with regard

to stability and less fluctuation in freight rates, better pricing due to economies of scale and

more efficient and extensive services offered by carriers. UNCTAD estimates that

consolidation will continue and that the industry will focus on reducing costs through

optimized and efficient networks, better fleet utilization and the rationalization of

activities.39

33. One study defines the container liner shipping market as a competitive one, in

which supply grows faster than demand, leading to decreasing freight rates.40 Lower rates,

however, push smaller carriers out of major routes to niche markets and this may, in the

long term, lead to more oligopolistic behaviour and higher freight rates. The study states

that it may be sufficient to monitor the market, including with regard to variables such as

freight rates and surcharges, market concentration levels and the degree of product

development and differentiation.41 However, freight rates and surcharges are only one area

affected by increased market concentration. The impact of increased concentration on other

components of the maritime transport supply chain should be considered, such as sailing

frequencies, transit times, ports of call and associated service quality. Such factors

determine the reliability and predictability of services, and are essential considerations for

shippers, that is importers and exporters.

34. Growing concentration in the market increases the risk of market distortion with

regard to fair competition. Risks include the fact that carriers may exert market power,

limit supply and raise prices in the long term and once the industry reaches stability.

In 2016, freight rates on the Shanghai, China–Santos, Brazil route increased by

261.3 per cent compared with 2015, due to the removal of half of the weekly services and

more than 40 per cent of deployed capacity in November 2015–February 2016.42

35. With regard to the reliability and predictability of liner shipping, global schedule

reliability decreased from 82.9 per cent in 2016 to 74.5 per cent in 2017. None of the

leading 18 carriers improved on their 2016 reliability scores.43 Some of the multinational

retailers who employ just-in-time strategies and are the largest shippers began to switch to

air cargo transportation. Air cargo is no longer a distress purchase for large retailers, but a

strategic choice often planned over several months.

36. Shippers are not the only actors affected by increased concentration. Ports,

including trans-shipment ports, among which competition is high and market shares are

volatile, may be negatively affected if deployment strategies by alliances and the stringent

requirements of megaships result in increased preferences for more direct connections. The

use of megaships and consolidation through mergers and alliances also decrease the number

of ports served by carriers. Megaships and greater consolidation have benefited carriers

with regard to economies of scale and lower costs. However, these have implications on

39 UNCTAD, 2017.

40 Organization for Economic Cooperation and Development, 2015, Competition issues in liner shipping, DAF/COMP/WP2(2015)5, 10 June.

41 Ibid.

42 UNCTAD, 2017, table 3.1.; JOC.com, 2017, Asia–South America spot rate hits record high, 29 May.

43 International Transport Journal, 2018, Liner reliability down in 2017, says Seaintel, 8 February.

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other parts of the supply chain, such as shippers, ports and terminals, who need to adapt to

dealing with ever-larger vessels and have become dependent on a smaller number of

carriers. As a consequence of the growth in vessel size, major carriers bypass or do not call

at some ports on the main trade routes. For example, in 2012–2014, the number of weekly

Asia–Northern Europe loops decreased by 36 per cent.44 Large, dominant carriers see more

benefits in mergers than alliances, including with regard to costs and improved

port operations.

37. In addition, there is a need for digitalization in the liner shipping industry, which

requires investment and thus provides an incentive for mergers. In the light of these

developments, further consolidation is expected in the industry and it is estimated that by

2028, there may be five or six actors in the sector.45

IV. Liner shipping: Challenges arising from competition issues

38. Continuous increases in vessel size and consolidation in the liner shipping industry

have led to an oligopolistic market structure on various trade routes. Concentration is

higher in smaller developing countries and small island developing States. 46 These

countries may therefore face decreased liner shipping service frequencies and higher freight

rates. Given the already relatively higher transport costs borne by the least developed

countries, landlocked developing countries and small island developing States, their trade

levels may be affected more than those of larger developing countries and developed

countries.

39. The use of megaships and global alliances have further increased entry barriers in

a market characterized by high fixed capital costs. This has made it almost impossible for

independent carriers to compete on major trade routes, giving shippers few choices between

three global alliances that do not face competitive pressure from independent carriers.

This situation may negatively affect smaller importers and exporters in developing

countries more than large shippers, which include large multinational retailers. The former

may not have the bargaining power to negotiate better rates, terms and conditions with the

leading carriers and this may adversely affect their export competitiveness, trade and,

eventually, economic growth.

40. In addition, the use of megaships and consolidation in the industry raise concerns

for shippers not only with regard to freight rates but also, perhaps more significantly, with

regard to service quality. Shippers state that service competition has been significantly

reduced and that service quality and standards have been impaired.47 This is an increasing

concern for shippers, in particular those who employ just-in-time strategies.

41. From a vertical perspective, carriers are also customers of ports and terminals.

A concentrated liner shipping market may therefore pose challenges to the latter.

Carriers have a high level of bargaining power compared with ports and terminals.

In addition, ports face challenges in adapting to the use of megaships and the need to invest

in port infrastructure. Risks associated with large infrastructure investments and the need to

ensure a certain level of traffic have encouraged ports to adopt strategies that involve

carriers in their ownership structures. Despite certain efficiency enhancing advantages, such

vertical integration between carriers and terminal operators creates the risk of foreclosing

access by competing carriers to key facilities and quality services. In such instances,

competing carriers are in a disadvantageous position in using terminals owned by rival

firms with regard to price, quality and the terms and conditions of terminal services offered.

For example, competing carriers may be assigned days of the week that are

44 Organization for Economic Cooperation and Development International Transport Forum, 2015.

45 Financial Times, 2017, Maersk chief sees further deals in shipping container industry, 13 August.

46 UNCTAD, forthcoming, Consolidation in liner shipping, Policy brief.

47 Global Shippers’ Forum, 2016, The Implications of Megaships and Alliances for Competition and

Total Supply Chain Efficiency: An Economic Perspective, Tunbridge Wells, United Kingdom of Great

Britain and Northern Ireland, p. 24.

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disadvantageous for carriers and more costly for shippers or provided lengthier loading and

uploading services at terminals.

42. Increasing the market power of global alliances may have other implications for

port operators. Agreements between alliance members do not impose restrictions on the

port preferences of parties, yet alliance members generally prefer the same ports.48 Port

operators that fail to come to an agreement with a global alliance may face significant

market losses.

43. Some competition authorities in developing countries face challenges in cartel

investigations concerning liner shipping carriers, including with regard to the difficulty of

locating and notifying individuals involved in investigations, as well as the fact that the

headquarters of carriers are not usually in their countries; carrier agency officials have

stated that the strategic decisions of agencies are taken by branches outside of the

investigating jurisdiction.49 Competition cases that require agencies to enforce competition

law on the conduct of carriers outside their territories pose a significant challenge in

developing countries. Competition authorities need to advocate with other relevant

government ministries and bodies for solutions suited to addressing such challenges. For

example, one challenge for exporters in developing countries relates to free-on-board costs,

which include the cost of moving goods from an exporter’s factory to a ship and may

comprise up to 100 different cost items. If importers buy at free-on-board terms, the costs

are born by exporters. Since developing country exporters do not have significant power to

negotiate favourable rates with large liner shipping carriers, they may end up paying high

amounts, which adversely affects their competitiveness.

V. Policy options

44. There is an intrinsic link between liner shipping and global trade; one cannot exist

or grow without the other. The liner shipping industry is capital intensive and often faces an

imbalance between supply and demand. Given these characteristics, liner shipping carriers

need cooperative arrangements such as vessel-sharing agreements, to deploy their assets

and provide their services more efficiently and in a more sustainable and reliable manner.

Such agreements can have pro-competitive effects and are necessary to ensure the viability

of carriers along with the reliability and sustainability of services provided to shippers.

45. The industry has experienced significant changes in the last decade, including the

repeal in the European Union of the block exemption for liner conferences, the introduction

of megaships, increased consolidation and changes in the structure of global alliances.

The market structure is therefore quite different from the era when block exemption

regulations were drafted in many jurisdictions. Countries may therefore consider reviewing

the need to maintain exemptions for liner conferences and voluntary-discussion agreements.

46. Given the high level of market concentration, it may be worthwhile to consider

examining alliances under merger control regimes. This would provide an opportunity to

fully analyse their impact on competition, service quality and efficiency and to impose

appropriately designed remedies related to any concerns. Another option would be to

impose reporting requirements on alliances, such as those imposed on the P3 alliance

initiative by the Federal Maritime Commission of the United States. In analysing mergers

and alliances, competition authorities need to look at not only price-related competition

effects, but also at the variety and quality of services provided to shippers. Competition

authorities need to consider the effects on the range and quality of services, frequency of

ships, range of ports serviced, reliability of schedules and efficiency, among others. Such

deeper analysis requires competition authorities to strengthen their merger review skills and

capacities.

47. Competition authorities need to closely follow and monitor developments in

the container shipping sector, in particular with regard to global alliances and other

non-rate-fixing agreements exempt from competition laws, as well as freight trends and

48 Contribution from the Government of Turkey.

49 Contributions from the Governments of Brazil and Turkey.

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market shares, to ensure fair competition and prevent anti-competitive practices in such

markets. Authorities also need to take into consideration not only competition between

carriers but also vertical integration between carriers and terminal operators, and the

implications for competing carriers, shippers and port authorities. Concerns may be

addressed by engaging with all stakeholders in the maritime transport supply chain,

including carriers, shippers and port authorities. This would allow authorities and regulators

to better evaluate the implications of horizontal and vertical integration in the industry and

find solutions that are acceptable to all parties.

48. Ports play a crucial role in maritime transport and global trade. Competition

between terminals at a port is essential to ensure the efficiency and competitiveness of

terminals and ports, and any related concerns may affect the competitiveness of terminals

and ports, as well as of exporters, and harm global trade. A port controlled by one or two

large carriers may raise concerns for competing carriers with regard to access to services

under equal terms and conditions and quality levels. Terminals or ports are usually put out

for tender through concessions by port authorities and operated by the winning firms for a

period of over 20 years. Competition and port authorities should therefore work together to

address competition concerns that may arise, ensure fair competition at ports and enhance

the competitiveness of this segment of the supply chain.

49. International cooperation is essential in dealing with cross-border anti-competitive

practices, and even more so in maritime transport given its global nature, as well as its role

in facilitating and promoting international trade. In this context, many member States have

indicated that the United Nations Set of Multilaterally Agreed Equitable Principles and

Rules for the Control of Restrictive Business Practices provides the necessary mechanism

for international cooperation.50

50 Contributions from the Governments of Argentina, Brazil, Kenya, Netherlands, Panama,

the Republic of Korea and Turkey.